ALJDEC decisions subject to certification as final

2021A-06813-CHC-ROC · Registrar of Contractors · 2022-05-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert Michael Clark,

COMPLAINANT

Freedom Renovations and Custom Flooring LLC,

License No. ROC 318082,

RESPONDENT

No. 2021A-06813-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 23, 2022

APPEARANCES: Robert Michael Clark on his own behalf; no one appeared for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On April 14, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing at 1:00 p.m. on May 23, 2022 at the Office of Administrative Hearing.

Through its Notice of Hearing, ROC alleges that Respondent Freedom Renovations and Custom Flooring LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(16), and (A)(22). Respondent holds license No. 318082 issued by ROC.

No one appeared for Respondent at the scheduled time and the matter was convened in its absence at about 1:19 p.m.

Complainant Robert Michael Clark appeared and testified on his own behalf.

ROC investigator Wes Ellington also testified.

Neither party submitted a disclosure statement.

In August 2021, Complainant and Respondent entered a contract that called for Respondent to install gutters at Complainant’s house.

Complainant was not satisfied with the work and on or about December 14, 2021 he filed with ROC a complaint against Respondent alleging abandonment on Respondent’s part.

On January 18, 2022, ROC’s Mr. Ellington conducted a jobsite inspection.

On January 28, 2022, ROC issued to Respondent a Directive that provides in part:

*** You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on February 17, 2022.

***

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Complaint Item: 5. Gutter are sagging and not flush to residence.

Investigator’s Observation: Verified. The installed gutters are not flush to the residence and in multiple locations; additional fasteners have been installed that warp the back side of the gutter, pulling it towards the fascia. The Respondent will need to correct this by the appropriate means. Since the Respondent is not properly licensed to

do this work, the “appropriate means” will need to be the two parties coming to an agreement for a resolution.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 7. Hold water with multiple leaks.

Investigator’s Observation: Verified. The Complainant provided a water test showing multiple leaks in the gutters. The Respondent will need to correct this by the appropriate means. Since the Respondent is not properly licensed to do this work, the “appropriate means” will need to be the two parties coming to an agreement for a resolution.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 8. Gutters are uneven.

Investigator’s Observation: Verified. There are many areas where the gutters are not properly sloped to efficiently drain out. The upper level is off to the point where no water comes out the down spout. The Respondent will need to correct this by the appropriate means. Since the Respondent is not properly licensed to do this work, the “appropriate means” will need to be the two parties coming to an agreement for a resolution.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 9. Gutter above front door has multiple leaks, looks sloppy, and not flush to residence.

Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means. Since the Respondent is not properly licensed to do this work,

the “appropriate means” will need to be the two parties coming to an agreement for a resolution.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

ROC determined that the other allegations raised in Complainant’s complaint did not require correction.

Respondent did not correct the work ROC ordered it to correct.

ROC issued to Respondent a Citation dated March 10, 2022, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3), (A)(16), and (A)(22).

At the hearing, Mr. Ellington testified to the effect that Respondent performed work that did not comply with the workmanship standards and that Respondent performed work that was beyond the scope of its license.

Mr. Clark testified that to the effect that had paid Respondent the entire contract price, which the administrative record shows was $2600.

Mr. Clark has paid another contractor to replace the gutters at issue.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

*****

3. Violation of any rule adopted by the registrar.

*****

16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

*****

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action....

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).

Ariz. Rev. Stat. section 32-1154(E) provides that “The registrar may impose a civil penalty of not to exceed $500 on a contractor for each violation of subsection A, paragraph 22 of” section 32-1154.

The preponderance of the evidence shows that Respondent’s work did not meet the workmanship standards for the reasons set out in ROC’s Directive. Consequently, Respondent violated Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

Mr. Ellington provided credible testimony showing that Respondent performed work that was not within the scope of its license, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(16).

The preponderance of the evidence shows that Respondent did not comply with ROC’s Directive and has violated subsection 32-1154(A)(22).

Because Respondent has violated the applicable statutes, ROC has authority to discipline Respondent’s license.

Considering the facts of this matter, Respondent’s license should be suspended until Respondent pays to Complainant restitution in the amount of $2600, see Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 803 P.2d 430 (App. 1990)(ROC may order a party to pay restitution as a condition to the reinstatement of a suspended license), and Respondent should be ordered to pay a civil penalty of $250.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar suspend Respondent Freedom Renovations and Custom Flooring LLC’s license number 318082 until it receives proof that Respondent has paid to Complainant $2600;

IT IS FURTHER RECOMMENDED that the Registrar assess against Respondent a civil penalty of $250.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is forty days after the date of that certification.

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-137160-45720000Done this day, May 26, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary -54864001

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-137160-45720000